Fight ‘Em ‘Til We Can’t

The writer of The Mahablog recently finished serving as a juror and “forepersonlady” in a marijuana possession case and says the experience was maddening:

The People contended that a substantial quantity of marijuana that had been found near, not in, the defendant’s apartment had been in the possession of the defendant. The People’s case had holes you could drive a truck through. The detective on whose uncorroborated testimony the prosecution’s entire case was based was caught in several, um, inconsistencies while he was on the witness stand.

Glenn Greenwald’s reaction to the above post is also interesting:

Our judicial system is plagued with towering and systemic flaws, but they receive relatively little public attention because only those who interact frequently with the legal system — judges and lawyers — are really aware of just how broken it is. Other than being an actual party to a civil litigation or criminal proceeding, jury duty provides the best glimpse into how the whole thing works, and Barbara’s reaction is quite typical.

How many defense attorneys go to law school (or at least decide to go into defense work) with a desire to stick it to the man, to change the system, to make a real difference for their clients? I would think the number would be high, yet, if Greenwald is right, do most of us simply become the grease that keeps the broken machine lubricated and chugging on in its dysfunctional ruts?

Inspirational, ain’t it? [tags]juries, justice system[/tags]

“If this type of work stresses me out this much does this mean that I was never meant for this job to begin with? Am I just pretending to be a lawyer, when in reality I’m nothing but a hack?” ⇒

At right is a photocopy of a classified advertisement that recently appeared in a local paper. (Click the image for a larger version.) What’s wrong with this picture?

Rule 7.2 of the Montana Rules of Professional Conduct says “a lawyer shall not give anything of value to a person for recommending the lawyer’s services except for paying “reasonable costs” of advertising or the fees of a “qualified lawyer referral service” that has been approved by an “appropriate regulatory authority.”

Of course, if this is not advertising the services of a lawyer, Rule 7.2 wouldn’t apply. But then, might there be issues with “unauthorized practice of law”? I don’t really know, but something does seem a little less than above board here…. [tags]upl, advertising, ethics[/tags]

One thing that’s great about doing legal research in Montana is that, unlike the SCOTUS where opinions can weigh in above 60 pages or more, the Montana Supreme Court frequently produces decisions in the 5-10 page range, and rarely, if ever do they go more than 20 pages. This may reduce the amount of favorable (or unfavorable, as the case may be) dicta we get, but it does make the research go a bit faster.

Another virtue of researching Montana criminal law is the simple lack of cases on any given topic. I’m still getting used to being able to search the Montana state criminal law section of Lexis and ending up with 8-10 results for any given search, rather than the hundreds or thousands you might find in federal law or another state. This obviously means that many questions remain unanswered in Montana, which, in turn, provides more opportunities for making new law. It also makes legal research faster, which, again, is not a bad thing — especially when it’s something you’re squeezing in on a Sunday!

In light of the latest statistics showing the astoundingly high rates of incarceration in this country, we hear these two tidbits:

More jail cells won’t reduce jail overcrowding:

For example, said Mimi Carter, director of the Maryland-based nonprofit Center for Effective Public Policy, convicted criminals who spend long stretches in prison are more likely to commit new crimes after they are released.

“The longer we incarcerate them, the worse they get,” she said.

Solving the problem of overcrowded prisons and jails will take a coordinated effort involving a wide spectrum of state, local and private interests, Carter told about 15 people on the ad hoc Detention Dilemma Group, a committee of the Montana Board of Crime Control. The group was formed last year to look for short- and long-term solutions to overcrowding at county jails and state prisons.

Many in prison don’t belong there.

Shawn Abbott, who runs a treatment program in Great Falls for sex offenders, said many people behind bars are young men who had sex with girlfriends who were underage at the time.

“We stigmatize them badly by labeling them sex offenders and forcing them to register with law enforcement for the rest of their lives,” she told the council.

“We need to be able to tailor our treatment of them,” she said.

Many of those offenders are classified as Level 1 sex offenders, said Mike Scolatti, a psychologist from Missoula who works with the Montana State Prison in Deer Lodge.

“In general, I don’t think Level 1 offenders deserve to be in prison,” he said. “These guys aren’t predators.”

Of the 608 sex offenders in prison in Montana, 137 are Level 1, he said. Their treatment costs $49,000 a year each, or $6.7 million annually.

“If the courts sentenced half those 137 Level 1 men to outpatient treatment, the state would save $3,381,000 a year,” Scolatti said.

About 100 other inmates have completed their sex-offender treatment and are just waiting to complete their sentences, he said.

“If we leave those guys sitting in prison for another year, it costs the state another $5 million,” he said, adding that the additional prison time does the offender no good.

“The vast majority of these guys aren’t sexual predators,” he said, noting very low recidivism rates. “Less than 1 percent of them are. Contrary to popular belief, we’re getting some very good results from treatment.”

Fascinating stuff to see in conservative and largely “law and order” Montana media.

The ACLU imagines what your next pizza order might be like w/a “national ID number.” (Flash animation.) ⇒“>⇒

“When it’s portable it’s easier to abuse than if you actually have to get somebody arrested and taken down to the station,” said Jeffrey Gamso, legal director of the Ohio chapter of the American Civil Liberties Union. ⇒

“Officials dismissed a murder charge Tuesday against a sheriff’s deputy accused of shooting and killing an unarmed teenager who authorities believed had stolen video game consoles.”

New public defender, Frolics and Detours (she doesn’t work in Montana; I’m not sure where she is), just started a couple of months ago and already has a massive caseload of 189 cases. Not surprisingly, she’s already feeling a little burned out:

I’m so exhausted. As a new attorney with a huge case load, it’s hard to determine when it is time to stop working and go home. Once I get home, I just crash. But then I wake up in the middle of the night and my mind starts racing. Aside from getting on meds, any suggestions for a newbie to help me feel better and not get so overwhelmed?

She’s received some good advice in response: do triage daily, focus on the big things and what must be done now, postpone what can wait. Of course, for a newbie, figuring out what is and is not crucial may be the hardest part. Blonde Justice also recommends less caffeine. I’ll just be taking that one under advisement.

Here in Montana, the Public Defender Commission has promulgated caseload standards to help reduce the chance of burnout and also to ensure that attorneys are not so overworked that their clients do not get good representation. Chapter II, section V of those standards says caseload should not exceed the following:

1. 150 Felony cases (excluding those in which the death penalt y is being sought) per attorney per year; or,
2. 300 Misdemeanor Cases per attorney per year; or,
3. 250 Misdemeanor Juvenile Offender Cases per attorney per year; or,
4. 60 Juvenile Dependency Clients per attorney per year; or,
5. 100 Civil Commit ment Cases per attorney per year; or,
6. 25 Appeals to the Montana Supreme Court per attorney per year; or,
7. 25 post­convict ion matters per attorney per year; or,
8. 12 petitions for certiorari to the United State Supreme Court per attorney per year.

I don’t know how it is around the state, but I’m pretty sure the majority of public defenders have already met—or have come pretty close to meeting—their yearly “quotas” in the five months since the system started on July 1. [tags]caseload, burnout, standards[/tags]

“When an attorney asks questions of a witness such as ‘are you aware’, or ‘did you learn’, often it is to hide the fact that the witnesss knowledge is based on hearsay and not on personal knowledge.” ⇒ [tags]Evidence, hearsay, tips[/tags]